Supreme Court Allows Expansion Of Schools' Drug-Testing Policies

Education officials say they don't see most school districts
suddenly crafting new drug-testing policies just because the U.S.
Supreme Court has upheld such testing of students in a wide range of
extracurricular activities.

Still, many school leaders are glad they now have the option. And
some say the decision gives them the green light they've been waiting
for to start their own drug-testing programs.

Ruling 5-4 on June 27 in a case from Tecumseh, Okla., the court held
that testing students in such activities as choir and Future Farmers of
America is not an unreasonable search under the Fourth Amendment. That
ruling—Board of Education of Independent School District No.
92 v. Earls (Case No. 01-332)—greatly expands the
scope of allowable student drug testing beyond a 1995 decision,
Vernonia School District v. Acton, in which the court
upheld the testing of students involved in interscholastic
athletics.

Paul D. Houston, the executive director of the American Association
of School Administrators in Arlington, Va., said he was glad the court
gave districts the authority to enact such policies. But he doesn't
expect the ruling "to open the floodgates."

One reason is cost.

"I think there is a real issue with that in large districts," said
Harold J. Kwalwasser, the general counsel for the 737,000-student Los
Angeles Unified School District.

Yet some administrators are pleased that they now have an additional
strategy to discourage student drug use.

"We have not seen a need to do anything that drastic," said Charita
L. Crockram, a first-year principal at the 1,227-student Collinwood
High School in Cleveland. "But I like the fact that if there is a need,
that this is another way in which we can deter the use of drugs within
our population."

Mossi White, a member of the board of education for the
12,990-student Provo, Utah, school district and the president of the
Alexandria, Va.-based National School Boards Association, called the
decision "a wonderful right for each local community."

In fact, a few districts were waiting for a decision in the Oklahoma
case so they could move ahead with drug-testing policies.

The South Dearborn Community School Corp., a 3,000-student district
in the southeastern corner of Indiana, is one.

In 1998, the school board approved a policy that allowed random drug
tests of students who participated in extracurricular programs and
those who drove to school. But the policy was suspended two years ago,
pending the outcome of a drug-testing case before the Indiana Supreme
Court.

Even though the Indiana court found in favor of the school district
in that case, David E. Koehler, the superintendent of the South
Dearborn district, wanted to await the verdict from the U.S. Supreme
Court.

Now that the ruling has been made, Mr. Koehler said he intends to
recommend to the school board that the policy be reactivated.

"We have a drug problem," he said. "And we believe that since we
stopped random testing two years ago, it's gotten worse."

Two South Dearborn students have died because of drug overdoses that
occurred off school grounds, and students have been arrested for
possessing and selling drugs, but not on school property, Mr. Koehler
said.

Critics Question Policy

The policy adopted in 1998 by Oklahoma's 2,050-student Tecumseh
district goes beyond athletes to include students in all activities
involving competition with other schools.

"Students who participate in competitive extracurricular activities
voluntarily subject themselves to many of the same intrusions on their
privacy as do athletes," said Justice Clarence Thomas in the Supreme
Court's majority opinion. He added that "the drug-abuse problem among
our nation's youth has hardly abated since Vernonia was decided
in 1995."

He was joined in his opinion by Chief Justice William H. Rehnquist
and Justices Antonin Scalia, Anthony M. Kennedy, and Stephen G.
Breyer.

Justice Ruth Bader Ginsburg, who had voted to uphold testing of
student athletes in the Vernonia case, wrote the main dissent,
joined by Justices John Paul Stevens, Sandra Day O'Connor, and David H.
Souter.

"The particular testing program upheld today is not reasonable, it
is capricious, even perverse," Justice Ginsburg said. The district's
policy, she said, "targets for testing a student population least
likely to be at risk from illicit drugs and their damaging
effects."

That attitude was echoed last week by the National PTA, which issued
a statement asking: "Do schools want to require students to undergo
drug tests, which may discourage participation in extracurricular
activities and possibly lead to more destructive behaviors?"

Marilyn F. Johnson, the chief legal counsel for the 435,000-student
Chicago public schools, expressed a similar view. Extracurricular
activities "keep students engaged and keep them focused," she said.
"Imposing hurdles is not something that we're looking to do."

The National PTA, based in Chicago, also raised the question of how
randomly testing students participating in such activities would
discourage drug use by other students.

When the Tecumseh policy took effect in October of 1998, it required
students in the activities covered to be tested initially as part of a
physical at the beginning of the school year. After that test, students
were to be selected randomly throughout the year for additional
urinalysis.

The students' urine samples were tested for traces of marijuana,
cocaine, amphetamines, opiates, barbiturates, and benzodiazepines. The
samples were not tested for steroids, nicotine, or alcohol.

Tecumseh's drug-testing program was challenged by David and Lori
Earls on behalf of their daughters Lindsay and Lacey. Lindsay, who just
finished her freshman year at Dartmouth College, was a participant in
choir, color guard, and the academic team before graduating from
Tecumseh High School in 2001. Lacey, who will be a senior at Tecumseh
High this fall, has served as an officer of the Future Farmers of
America chapter. Both sisters were selected for random drug tests
several times, and both tested negative for drug use. ("Testing the Limits of School Drug
Tests," March 13, 2002.)

The family's challenge to the drug-testing policy lost in federal
district court in Oklahoma City. But a panel of the U.S. Court of
Appeals for the 10th Circuit, in Denver, ruled 2-1 last year that
testing extracurricular participants beyond athletes was not justified
under the Fourth Amendment. Drug testing in the Tecumseh district has
been suspended since then.

Lindsay Earls said she was disappointed by the Supreme Court's
ruling.

"This is a sad day for students in America," she said. "The ruling
is in the name of protecting students from drug use, but I really don't
see how that works. In my high school, there were kids who dropped out
of extracurricular activities in protest of the policy."

Graham A. Boyd, the director of the drug-policy project of the
American Civil Liberties Union, who argued the case on behalf of the
Earls family, called the ruling "an unprecedented assault on students'
privacy."

But he said that even after the Vernonia decision, relatively
few districts nationwide took up testing of student athletes. And while
a few districts pushed beyond athletes to test broader categories of
students, Mr. Boyd said he doubted the latest ruling would result in
moves by districts to test all students.

"The court clearly did not go so far as supporting drug testing of
all students," he said.

Linda Maria Meoli, an Oklahoma City lawyer who argued the case on
behalf of the Tecumseh district, said she agreed that the ruling does
not authorize a district to test all students. But she believes testing
all extracurricular-club participants, a broader group than the
competitive clubs tested in Tecumseh, is probably on solid ground
now.

"Still, I don't think you are going to see thousands of school
districts passing drug policies," Ms. Meoli said.

Nevertheless, Yale Kamisar, a law professor at the University of
Michigan in Ann Arbor and an expert on constitutional law, said he
would not be surprised if a district tried to push the boundaries of
last month's decision. "It seems to me that this case makes it much
more likely that the court would approve a [drug- testing] program that
includes all students," he said.

Custodial Responsibility

Much of Justice Thomas' majority opinion relies on broad language
from the Vernonia decision that public schools have "custodial
and tutelary responsibility for children."

The Tecumseh district presented "sufficient evidence to shore up the
need for its drug-testing program," he wrote. He did not answer
arguments from the challengers, also noted in the dissent, that the
evidence of any drug problem among the targeted extracurricular
participants was thin. Nor did he address the issue that the Tecumseh
district had certified to the federal government, in seeking drug-free
schools grants, that it did not have a major drug problem.

Justice Thomas said it would be difficult for the courts to require
schools to show they had a drug problem before being justified in
implementing drug testing.

Justice Breyer filed a concurring opinion that cited federal studies
showing the continuing prevalence of drug use by young people.. And he
said a "conscientious objector ... can refuse testing while paying a
price (nonparticipation) that is serious, but less severe than
expulsion from the school."

In her dissent, Justice Ginsburg drew distinctions between the
privacy expectations of athletes and other extracurricular
participants. She wrote, "Competitive extracurricular activities other
than athletics ... serve students of all manner: the modest and shy
along with the bold and uninhibited."

And she mocked the school district's arguments that a safety
rationale could justify drug testing of participants in some
nonathletic extracurricular activities, such as the Future Homemakers
of America, whose members handle knives; Future Farmers of America
participants, who wrangle livestock; and band members, with their
sometimes heavy instruments.

"Notwithstanding nightmarish images of out-of-control flatware,
livestock run amok, and colliding tubas disturbing the peace and quiet
of Tecumseh, the great majority of students the school district seeks
to test in truth are engaged in activities that are not safety
sensitive to an unusual degree," Justice Ginsburg said.

Vol. 21, Issue 42, Pages 35, 42, 44

Published in Print: July 10, 2002, as Supreme Court Allows Expansion Of Schools' Drug-Testing Policies

Read the U.S. Court of Appeals for the 10th Circuit's March 2001
opinion rejecting the Tecumseh school district's drug-testing
policy, from FindLaw.

The American Civil Liberties
Union has issued a policy
statement on student drug testing, saying it "believes student drug
testing policies to be both invasive and counter-productive." The
organization also posts a variety of resources relating to the Earls
case, including fact sheets and legal papers.

Read "Testing for
Drugs of Abuse in Children and Adolescents," an August 1996 policy
statement from the American Academy of
Pediatrics. The brief details the AAP's position on
"non-suspicion-based screening programs," stating that "Participation
in such programs should not be a prerequisite to participation in
school activities. Involuntary testing is not appropriate in
adolescents with decisional capacity—even with parental
consent—and should be performed only if there are strong medical
or legal reasons to do so."

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